Digging Deeper than Deference

In his latest column, Cass Sunstein welcomes the new Supreme Court term by laying down a marker for Justice Gorsuch:

When people challenge Trump’s executive branch for having crossed legal lines, how will Gorsuch vote?

On the basis of what we know, my hunch is good news for the rule of law: No matter who appointed him, he won’t be especially deferential to “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.“

Sunstein is alluding to Gorsuch’s opinions on the Tenth Circuit—specifically, his concurring opinion in Gutierrez-Brizuela v. Lynch (2016), raising fundamental questions about Chevron deference. In that opinion, which attracted so much attention from commentators during Gorsuch’s nomination (present company included). That opinion includes the lines that Sunstein quotes and scrutinizes. As Gorsuch wrote:

For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. Those problems remain uncured by this line of reply.

The problem that Gorsuch highlights in that opinion isn’t exclusive to one Administration or one political party, so Sunstein is right to ask whether any Justice, including Gorsuch, is going to maintain his or her principles after a the election of President Trump. (I raised a similar question here in September 2016, asking whether Justice Ginsburg might suddenly become less deferential if Donald Trump were to win the presidential election. I guess we’ll find out. I was half-joking then, but I guess we’ll find out now.) If federal judges start changing their methods or principles in reaction to Trump’s election, then those judges will undermine not just their own credibility but the entire judiciary legitimacy’s, as Jack Goldsmith observed recently in The Atlantic.

But Sunstein’s exclusive focus on just a few lines from Gorsuch’s opinion, detached from the context of Gorsuch’s broader argument in that opinion (to say nothing of his other opinions), risks obscuring the larger point that Gorsuch was trying to make.

For just a few paragraphs after the lines that Sunstein quotes, Gorsuch stressed that Chevron deference’s problems are really just symptoms of a much more fundamental problem: Congress’s excessive delegation of power to agencies, and the courts’ failure to check against it. I’ll quote Gorsuch’s opinion at length here, for greater context:

… [Y]ou still might wonder: can Congress really delegate its legislative authority — its power to write new rules of general applicability — to executive agencies? The Supreme Court has long recognized that under the Constitution “congress cannot delegate legislative power to the president” and that this “principle [is] universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.” Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892). Yet on this account of Chevron we’re examining, its whole point and purpose seems to be exactly that — to delegate legislative power to the executive branch.

Not only is Chevron’s purpose seemingly at odds with the separation of legislative and executive functions, its effect appears to be as well. …

Of course, in relatively recent times the Court has relaxed its approach to claims of unlawful legislative delegation. It has suggested (at least in the civil arena) that Congress may allow the executive to make new rules of general applicability that look a great deal like legislation, so long as the controlling legislation contains an “intelligible principle” that “clearly delineates the general policy” the agency is to apply and “the boundaries of [its] delegated authority.” Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (internal quotation marks omitted). This means Congress must at least “provide substantial guidance on setting . . . standards that affect the entire national economy.” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 475 (2001); cf. Touby v. United States, 500 U.S. 160, 165-67 (1991) (suggesting a heightened standard might apply in the criminal setting). Some thoughtful judges and scholars have questioned whether standards like these serve as much as a protection against the delegation of legislative authority as a license for it, undermining the separation between the legislative and executive powers that the founders thought essential.

Gorsuch then proceeds to string some cites to Justice Thomas, Justice Scalia, and Prof. Gary Lawson, on the courts’ meager efforts to constrain Congress’s excessive delegations of power, before suggesting that modern nondelegation caselaw is simply inconsistent with the Court’s strongest anti-delegation decision, Schechter Poultry.

In short: the problem, as Gorsuch saw it, isn’t simply “judicial deference” per se. The problem is judicial deference premised upon Congress’s ability to delegate power to agencies in vastly broad terms. Gorsuch returned to these twin themes, deference and delegation, over and over again on the Tenth Circuit (as I summarized briefly in a 2016 essay).

Of course, Sunstein himself is famously skeptical of the short-lived Schechter Poultry rule’sstatus as a “conventional” doctrine of constitutional law, a skepticism made famous by his clever quip, “[w]e might say that the conventional doctrine has had one good year, and 211 bad ones (and counting).”

But that’s beside the point, which is this: if Gorsuch had doubts about Chevron while on the lower court, and he saw Chevron‘s problems as symptoms of excessive legislative delegation, then how might he work through those paired concerns on the Supreme Court?

Perhaps Gorsuch will join the emerging trend of trying to cabin Chevron with a robust “Step Zero,” incorporating the “Major Questions Doctrine,” as exemplified by Chief Justice Roberts and the four more progressive justices in King v. Burwell. Or maybe Gorsuch will eventually join Justice Thomas and others in looking for a new or old version of the nondelegation doctrine that is much less deferential to Congress’s decisions to delegate power?

But obviously those would be heavy lifts. King‘s Step Zero approach has yet to be further elaborated (though we can assume that the Court eventually will, and didn’t simply write a ticket good for one ride only). And reform of the broader nondelegation doctrine would take much, much longer (to say the least).

So in the meantime, perhaps Gorsuch will continue to work within existing precedent, looking for small opportunities for improvement or reform at the margins, rather than radically changing doctrine. If so, then maybe Sunstein will praise Gorsuch for approaching matters in a spirit of “Burkean minimalism.”

Adam J. White is a research fellow at Stanford University’s Hoover Institution, and executive director of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.